Tag: fundamental rights

Ever since India’s 2009 general election, it has become fashionable for many politically-minded people in the country to style themselves as being “right of centre”, “centre-right” and other terms where “right” and something else is joined together with a hyphen.

It is clear what people who label themselves thus are against — the Congress party, and especially the family that constitutes its apex leadership. Mostly, they oppose its “appeasement” of minorities, especially Muslims. They oppose its propensity to create “entitlements” in the form of reservations, quotas, subsidies and special treatment. They oppose the cronyism in the economy and political corruption in governance. They oppose its pusillanimity in foreign policy. There are many more, but these strike me as the big ones.

It is less clear what they stand for. Many of our self-styled right-of-centrists are strident opponents of liberalism. Many have deep misgivings, if not outright opposition to markets and free trade. The most coherent “right” in India is the Hindu right, which is clear about its commitment to Hindu nationalism, broad or narrow. However, even the Hindu right does not have an economic agenda that is consistent with its political ideology: should the Hindu nation rely on individual liberty and free markets, or should it construct a strong state that draws lines on individual freedom and controls the levers of economic power? During and after the 2014 election campaign, market liberals and social illiberals found themselves in the same “right of centre” camp, often having to pretend to be each other in order to fit in.

This ideological confusion and political tension within the segment that calls itself right-of-centre in India comes because our political context and historical development is different from that of the West, where the Right and Left first came into existence. I’ve written about this in my Niti-Mandala post, constructing India’s political spectrum. I was reminded of it last week as I read Jonah Goldberg’s statement of the Conservative position in the United States: which connects tradition and markets and forms the basic worldview of the American Right that the Republicans used to champion before Donald Trump, er, shook things up.

As a Chestertonian at heart, I like and respect old things. I like it when stuff beats the law of averages for reasons we cannot easily fathom. The Hayekian in me thinks old things that last often do so for good reasons we just don’t — and sometimes can’t — know. Unfortunately, we live in an age where we take the razor of reason to every little thing and strain to know the whys of it, as if knowing the why will empower the how. [National Review, emphasis added]

The same argument would be self-contradicting in India: where there are inhuman inequities embedded in caste discrimination and social practices. You can either defend the traditional Indian social order or individual liberty (and markets and so on). You can’t defend both, because the former is constructed without regard to, and often in suppression of the latter. This explains the confusion and tension among our “right of centre” compatriots, who are at best, — to turn a phrase from a best-selling novelist — Half Right. No pun intended.

They can either be traditionalists who seek to defend the old order from social revolution, and therefore come into tension with the Constitution that demands it. Or they can be liberals who pursue individual liberty and free markets, and thereby come into tension with everyone else who opposes either individualism or markets or both. They can’t be both.

Logical consistency apart, the practical question is to what extent can the two Half Right constituencies come together in politics. Is the tension between them bridgeable? Well, that’s hard to say, but the side with greater political clout will force the other into submission. Market liberals are not driving policy in the Modi government today.

The arrangement will hold to the extent that their dislike for the Left outweighs their dislike for each other. If the Congress party sheds its baggage — and that’s a big, big if — or another party takes up its Centrist space, it is likely that the the more liberal of the liberal Half Right will gravitate towards it. Until that time, the liberal Half Right will cohabit with the traditionalist Half Right, because most who seek the security of an ideological label are likely to lack the courage and commitment to stand apart, because that means standing alone.

Jayant Choudhry, the Rashtriya Lok Dal MP from Mathura was the only legislator who expressed in the Lok Sabha concerns raised by citizens against the draconian Information Technology Rules (IT Rules) that came into effect this year. (More about what’s wrong with these rules in my DNA op-ed, Sunil Abraham and M R Madhavan in Pragati)

The new IT rules put in place by the UPA government earlier this year have received far less public attention than they should. We covered them in this month’s issue of Pragati. One of the speakers at the recent Takshashila Shala described the damage they can do. In today’s DNA column I suggest how we, as ordinary citizens, can use constitutional methods to call for these rules to be reviewed. Write to your MP.

So your daughter is finishing college soon. She’s waiting for entrance exam results and also applying for some jobs. Would you permit the guy who runs the neighbourhood internet browsing shop to know her name, address, phone number and keep her photograph? Would you be comfortable if he knows which websites she has been accessing? Probably not. Now prepared to be shocked. Under the new Rules under the Information Technology Act (IT rules), the Government of India requires cyber cafe operators to collect this information about your daughter. You’ll probably protect your daughter’s privacy by buying her a personal computer but what about the millions of fathers that can’t afford one?

But why does the government require your daughter to provide personal information to a stranger? National security, perhaps. After all terrorists have been using cyber cafes and unsecured Wi Fi connections to send manifestos (usually in bad English) and claim responsibility for attacks. So if cyber cafe operators collect the names and photographs of all their customers, the authorities will be able to quickly identify the terrorists the next time they send an email message. This is an excellent method to catch last year’s terrorists. Prospective terrorists are either unlikely to use cyber cafes because of these restrictions or if they do, provide false information.

The inability to use cyber cafes isn’t going to deter terrorists. It’s only going to cause them to use different tactics. Ordinary citizens however will suffer risks to their privacy. Cyber cafe owners will have yet another set of regulations to comply with. The unscrupulous among them might try to get around these rules through the well-known route of bribing the inspector. The inspector, who, among other matters has the authority to determine whether or not the partition between two cubicles is no more than 52 inches high, will have to avoid the temptation of looking the other way for a fee. If the Lok Pal comes in to effect, it might have to appoint an army of inspectors to investigate allegations against the army of cyber cafe inspectors that’ll will have to be appointed for the purpose of measuring the dimensions of cyber cafe partitions. The Lok Pal’s inspectors themselves, as we all know, will be extraordinary, incorruptible individuals, unlike cyber cafe inspectors.

And you ask why corruption is growing?

Maybe cyber cafes don’t concern you. What about free speech, which makes it possible for me to disparage the IT rules as being poorly considered? Under the new rules, users cannot post material online that is “grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner”. And who gets to decide what constitutes any of the above? No, not a magistrate or even a government officer. Anyone can send a notice to the owner of a website giving notice of a violation under any of the loose, subjective criteria. It then must be taken down within 36 hours.

Complain about bad service from an airline on your blog, and they can send a take down notice claiming it is defamatory, libellous or disparaging. In the hands of the easily outraged, aggressively hypersensitive and competitively intolerant sections of our population this will have the effect of further chilling freedom of expression. Moreover, the inclusion of the word blasphemy in that list makes you wonder which country we are in.

Actually, we don’t need these new rules to protect us from libel, paedophiles or incitement to violence. There are existing laws for that. A libel is a libel whether committed on paper or in ether. These rules, though, have the unacceptable consequence of stifling free speech. They weaken the ordinary citizen and put another coercive tool in the hands of the powerful and the intolerant. They must be reviewed.

Even though they came into force recently, they can be reversed. The government must place these rules before Parliament, which can amend these rules. All it takes is for one MP to demand a discussion. There is time but it is short..only until Budget Session 2012. Here’s what’s doable: write, call or visit your MPs. Write to the leaders of the political party you support. You’ll find their contact information at http://is.gd/loksabha and http://is.gd/rajyasabha. Explain to them that the IT rules are an unacceptable infringement of our freedom. Ask them to demand a discussion on the floor of Parliament. The government has exceeded the authority given it by Parliament and every MP should be concerned.

The rules can also be challenged in court, especially by persons who are directly affected by it. A well-drafted PIL in the Supreme Court is also possible.

The awakening of middle India this year can yet lead to better governance if we adhere to constitutional methods. It’s not going to be easy. Parliament is not what it once was. For years, it has not changed a single rule tabled by the government. But how hard is it to write to your MP? Your letter might make a difference.

Longtime readers might recall that this blog has long argued that India’s crisis of governance arises from the UPA government’s institution of entitlement economics, surrender to competitive intolerance and returns to political violence. Corruption and unaccounted money — issues that have captured popular imagination in the last few months — are merely symptoms of the underlying disease. Ridding the body politic of this malaise requires the building of a political alternative around a new mantra:

Give us back our economic freedom, and let it reverse the entitlement economy of corruption and cronyism.

Give us back our individual liberty, and let it reverse the competitive intolerance that is destroying India’s social capital.

Give us a government that restricts itself to being competent in its basic duties — like ensuring the rule of law –, and let it reverse the tide of violence and the grammar of anarchy.

Freedom House’s Paula Schriefer reminds us that it is still stalking our freedoms, but she doesn’t go far enough:

This week, member states of the United Nations will vote on what has become an annual resolution, “On Combating Defamation of Religions,” put forward by the Organization of the Islamic Conference, a group of 57 states with large Islamic populations. The resolution condemns what it calls “defamation of religions”—a vague notion that can perhaps best be described as a form of expression that offends another’s religious sensibilities—and urges countries to enact laws that prohibit such forms of expression. The resolutions are part of a larger and dangerous campaign to create a global blasphemy law to combat what Muslim leaders refer to as “Islamophobia.”
…
Yet hypocrisy in Europe and the United States does not justify attempts to bring governmental oversight into what constitutes offensive expression. Even with the best intentions, which are often lacking, governments should never be in the business of policing speech. The tools of defeating intolerance, including religious intolerance, start with a legislative environment that protects people’s fundamental political rights and civil liberties, including freedom of expression. Blasphemy laws don’t work in any context and U.N. member states should reject them unconditionally. [NYT]

You can’t allow the hard won freedom that we have in India or in the United States to be snatched away by majority vote by a supra-national institution. The correct response is not so much to try and defeat the motion whenever it comes up—and it will come up again and again—but rather shut the whole thing down. No one will miss the demise of the UN Human Rights Council, except those who need it for purposes opposite to the reason it was was brought into existence.

Let’s start with an axiom: all individuals are free, and from this freedom, they possess certain inalienable rights. They possess these rights and freedoms at all times, but in a state of nature, their ability to enjoy the freedom and exercise the rights is circumscribed by their individual power. In Indian philosophy, the state of nature is termed as matsya nyaya, or the law of the fishes, a condition under which the stronger fish eats the weaker fish. Thomas Hobbes, the 17th century English philosopher, describes this as the time when “men live without a common power to keep them all in awe, they are in that condition which is called war; and such a war as is of every man against every man (bellum omnium contra omnes).” Life, therefore, is “solitary, poor, nasty, brutish, and short.”

To better enjoy their rights and freedoms, individuals trade-off a part of their freedom for the security offered by a state. Hence Kautilya writes

People suffering from anarchy as illustrated by the proverbial tendency of a large fish swallowing a small one (matsyanyayabhibhutah prajah), first elected Manu, the Vaivasvata, to be their king; and allotted one-sixth of the grains grown and one-tenth of merchandise as sovereign dues. Fed by this payment, kings took upon themselves the responsibility of maintaining the safety and security of their subjects (yogakshemavah), and of being answerable for the sins of their subjects when the principle of levying just punishments and taxes has been violated.[Arthashastra I:13]

In Western philosophy, this trade-off forms the basis of social contract theories. In Leviathan, Hobbes argues that individuals cede all their rights in return for protection to a sovereign who is himself above the law. John Locke, writing after Hobbes, is more moderate: in his view, individuals surrender only some of their rights to a government that rules by the consent of the governed.

This trade-off forms the basis of modern liberal democratic states. The exact implementation differs from state to state, and depends on a number of factors. But most often, the social contract is codified in a constitution. Constitutions are not, and do not have to be either perfect or immutable. To varying degrees, they affirm the rights of the individual and offer an enlightened method to settle the differences between the interests of individuals. In sharp contrast to Hobbes’ Leviathan, modern constitutions also, to varying degrees, make the government itself subject to the rule of law.

The upshot is that the state is necessary for the practical enjoyment of individual rights and freedoms. The survival and security of the state—often termed “the national interest”—is directly connected to the ability of citizens to enjoy their freedom. Put in another way, the “national interest” is the well-being and development of all its citizens.

If we adopt this people-centric definition of the national interest, how should one regard territory? Is territorial integrity uncompromisable? Not quite. To the extent territory is necessary for the well-being and development of all citizens, holding the territory is in the national interest. Where territorial compromises enhance the well-being of citizens, they are in the national interest. In the state-centric formulation, the objective question is whether acquiring, keeping or parting with a particular piece of land enhances the survival and security of the state, or not.

While the establishment of a state allows individuals to enjoy their rights—abridged as they are—the relationship between states remains in the world of matsya nyaya or anarchy. To an extent, the development of international law and institutions like the United Nations allow states to pursue ‘rules-based’ relations. But the ultimate arbiter of international relations is power. It follows that to protect its national interests—whether expressed in the people-centric or state-centric terms—states have to maximise their power relative to others. This results in an international balance-of-power, which can be stable or unstable depending on the power dynamics obtaining at a particular moment in time. The objective of the state then, is to maximise its own power to ensure that the international balance-of-power is in its favour.

This is how liberalism, nationalism and realism are connected with each other. Liberalism (or libertarianism, in its American usage) is concerned about individual freedom. To enjoy freedom in practice, the individual gives up some of it to the state. The state, a nation-state in India’s case, exists to ensure the rights, freedoms and well-being (yogakshema) of its people. So ensuring the survival and security of the Indian state—by maximising its relative power internationally—is wholly consistent with allowing its citizens to live in freedom.

Its verdict should halt the tendency to use the law to flaunt competitive intolerance

Excerpts from the verdict of a single-judge bench of the Delhi High Court (Justice Sanjay Kishan Kaul):

In a free and democratic society, tolerance is vital. This is true especially in large and complex societies like ours where people with varied beliefs and interests mingle..

It is very unfortunate that the works of any artist today who have tried to play around with nudity have come under scrutiny. These artists have had to face the music, making them think twice before exhibiting their work of art.

India’s new Puritanism, practised by a largely ignorant crowd in the name of Indian spiritual purity, is threatening to throw the nation back into the Pre-Renaissance era. Criminal justice system should not be used as an easy recourse to ventilate against a creative act.

Today, each painting has a story to narrate. Art to every artist is a vehicle for personal expression. An aesthetic work of art has the vigour to connect to an individual sensually, emotionally, mentally and spiritually.

The test for judging a work of art should be that of an ordinary man of common sense and not that of a hyper-sensitive one. Therefore looking at a piece of art from the painter’s perspective becomes very important, especially in the context of the nude.

Art and authority never had a difficult relationship, until recently…Our greatest problem today is fundamentalism, the triumph of the letter over the spirit. [IE]

Thus bench disposed off a slew of charges against M F Hussain (See Retributions). The plaintiffs will probably take their intolerance to the Supreme Court, but Justice Kaul’s judgement applies the brakes on the march of competitive intolerance. The big challenge, of course, is to make the ordinary man less hyper-sensitive. This judgement helps.

(We are trying to get hold of the full text of what looks like a very well-composed judgement.)

The society’s need for competence and employable graduates has been balanced with provision of educational access to the OBCs.

The judgement of the Supreme Court (should) be respected in both letter and spirit. Those who are now trying to subvert the letter and spirit of the verdict should receive severe social and political disapproval.

A personality, styling himself the “Prince of Arcot” was recently in the news for launching the latest salvo in the game of competitive intolerance. He played a role in getting the police to shut down an exhibition showing the Mughal emperor Aurangzeb’s intolerant policies against his subjects.

It was Aurangzeb who instituted the Nawabdom of ArcoSee updates below. But Mohammed Abdul Ali, an Indian citizen who calls himself a Nawab and has a website that describes him as the present “Prince of Arcot”, is in violation of the Indian constitution.

Part III. Article 18.
Abolition of titles.-
(1) No title, not being a military or academic distinction, shall be conferred by the State.
[Constitution of India]

Mr Ali has violated my right to equality, a fundamental right, and your’s too, if you are an Indian citizen. He was already in violation of Article 18 before he abetted in the violation of Article 19 (freedom of expression). Retaining royal titles, shutting down those he disapproves, Mr Ali is acting as if India was still part of the Mughal empire.

But there is a prima facie case to take the case against the Nawab to the Supreme Court. It has original jurisdiction over violations of fundamental rights.

Third Update:

…Ali is the only royalty in India that’s being recognized by the government that pays for his upkeep and maintenance. [DesPardes]

Whew!

Second Update: The business of royal titles is unclear. The 1971 amendment abolished privy purses, privileges and titles of princes and their successors. But they continue to use their titles. And the Prince of Arcot is ranks as the equivalent of a minister in the Tamil Nadu cabinet. Now that flies against a lot more than equality. It must be some historical curiosity that has left us with this bizarre situation.

His Highness Nawab Mohammed Abdul Ali Azim Jah, the Prince of Arcot, is the only royal in India who was not affected by the abolition of privy purses. In the order of precedence, he enjoys the rank of cabinet minister of the state of Tamil Nadu.

The Nawab hails from a family that traces its lineage back to the second caliph, Umar ibn al-Khatt?b. The title ‘Prince of Arcot’, uniquely using the European style prince, was conferred on his ancestor by the British government in 1870 after the post of Nawab of the Carnatic (a title granted by the Mughal emperor) was abolished. [Wikipediaemphasis added]

Update:

The abolition of the privy purses, guaranteed by the Indian Constitution and the elimination of the princely order itself, became the policy of the Congress party. After a year-long battle, this was finally achieved by an amendment to the Constitution at the end of 1971.

Although some parties have attempted to portray the constitutional changes as an abolition of the princely order, this does not appear to be the legal position. The changes merely removed official recognition of the position of “ruler”, as defined by the 1950 Constitution, and enabled the ending of privy-purse payments. The amendments did not touch upon any aspects of the treaties and engagements made during the accession of the princely states, nor did they even address the matter of rights to styles and titles. Since then, there have been a number of decisions and cases of the Supreme Court of India, where the court itself has continued to use the styles and titles enjoyed by the princes, the nobility and members of their families. Some prominent examples are: “Colonel His Highness Sawai Tej Singhji, Maharaja of Alwar vs. The Union of India & Anr.” (1978), “H.H. Sir Rama Varma vs. C.I.T.” (1994), “The Commissioner of Income-Tax, Madhya Pradesh, Bhopal vs. H.H. Maharani Usha Devi” (1998), “Commissioner of Wealth Tax vs. Prince Muffakham Jah Bahadur Chamli Jan” (2000), “Her Highness Maharani Shantidevi P. Gaikwad vs. Savjibhai Haribhai Patel & Ors.” (2001), “Union of India & Another vs. Raja Mohammed Amir Mohammad Khan” (2005). It is hard to imagine that the highest court in the land would have accepted the use of these titles had they been contrary to law. [link]

Note: The original title of this post was “Why the ‘Prince of Arcot can be sued”. Well, he can’t be sued for calling himself the ‘Prince’. And he certainly won’t be sued for complaining about the Aurangzeb show.